Jon Comlay, Author at Parklane Plowden

Expertise

Our Expertise

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Howard Elgot Settles Fatal Post-Natal Sepsis Claim against County Durham and Darlington NHS Foundation Trust, Dr James Carlton and NEAS

The Names of the Claimants and Dependent Children were Anonymised at the Approval by the High Court on 17th February 2025  Anonymity The Court of Appeal is to hear the appeal in PMC v A Local Health Authority next week. In the meantime on 17th February 2025 HH Judge Siddique, sitting as a Judge of the High Court, ordered that the Claimants and child Dependants be anonymised in standard form with the court to review the order on the first CMC to deal with quantum, on the first open date at 1st October 2025. This was a very satisfactory outcome for the family, given the current uncertainties. The Claim A mother of three children gave birth to the fourth child at the Darlington Memorial Hospital on 31st March 2019. She was discharged the same day. She suffered a Group A Streptococcal puerperal infection which commenced during labour or shortly thereafter. She died of her infection on the morning of 3rd April 2019. There were claims against the community midwife who visited the mother on the morning following the birth, the mother’s GP who prescribed codeine for her without speaking to her or her partner, the ambulance personnel who attended the mother in the early hours of the following morning, and against the doctors at the Darlington Memorial Hospital where she re-attended after having been brought there by ambulance. The claims were listed for a 12 day trial on liability only in the High Court from 17th February 2025. There were considerable difficulties to overcome. First HSIB had carried out a detailed independent investigation into the circumstances of the mother’s death. Although criticism was levelled at the ambulance service and the hospital, no criticism was levelled at the community midwife or the GP. Furthermore the authors of the HSIB report were somewhat sceptical as to whether the mother could have been saved absent delays by the ambulance service or at the hospital. An inquest into the death of the mother was held at which the Coroner was critical of the doctors at the hospital, but not of the ambulance service, the community midwife or the GP. The Coroner called expert evidence on causation which strongly supported the argument that by the time the ambulance arrived at the mother’s house it was too late to save her, whatever treatment she was given. We felt that the claim against the community midwife was the strongest. Although she had a checklist to complete which included “state of the uterus,” she did not palpate the uterus at all, instead writing “afterpains N/P”, N/P being her abbreviation for not palpated. Working back from the tragic outcome, the consultants in infectious diseases agreed in their joint report that had the midwife palpated the mother’s uterus she would have elicited lower abdominal and specifically uterine tenderness in excess of postpartum tenderness, and atypical for afterpains. Nevertheless the Defendants’ expert midwife pointed to the NICE Guidance then extant that “in the absence of abnormal vaginal loss, assessment of the uterus by abdominal palpation or measurement as a routine observation is unnecessary.” The mother did not suffer any abnormal vaginal loss. The claim against the GP turned upon whether he should have spoken to the mother before prescribing codeine. The codeine was requested by the mother’s partner to the GP’s receptionist. We noted that there are no GMC, NICE, Royal College or defence union references or guidelines relating to the prescription of drugs at the request of a lay third party. The Defendants argued that whilst guidelines suggest the need to always have direct contact with the patient before prescribing, it is the case that due to the realities of day to day practice this is not always possible in NHS primary care. By the time of the JSM it was clear that even 30 minutes of delay by the ambulance service personnel would be unlikely to affect the decision on causation that the court would have to make. As a term of the settlement we discontinued against NEAS, although NEAS agreed to be jointly and severally liable for the Claimants’ costs. Negligence at the hospital was admitted. The HSIB report was scathing, and the doctors from the hospital at the Inquest were profoundly apologetic. In particular when we questioned Dr Arasappan, Consultant in Emergency Medicine, at the Inquest, he stated that he would have given antibiotics by 04.45. The important question was, in effect, when would antibiotics and other appropriate measures have saved the mother? Following the joint statements the position was as follows:- Prof Lever, Consultant in Infectious Diseases 06.15 Dr Short, Consultant Intensivist 06.00 Dr Greenstone, Consultant in Infectious Diseases 01.00 – 03.00 Dr McCrirrick, Consultant Intensivist early the previous evening At the end of the day we felt that a settlement for 77.5% of the full value of the claim was the best that we were going to do without going through a 12 day trial, the result of which was likely to be positive, but certainly not guaranteed.

Ashes, Funerals, and Family Conflict

Read v Hoarean [2024] EWHC 3274 (Ch)  There is no right of ownership in a dead body and disputes can, and regularly do, arise over funeral arrangements and the final resting place of the body or ashes of a loved one. These disputes can be particularly fraught when the Deceased was a child and the parents cannot agree.  In Read v Hoarean, the Deceased was 18 years old when he took his own life in 2024. As the Deceased died unmarried, without children, and intestate, the persons with the right to call for his body to arrange the funeral and proper disposal were his parents<a id="_ftnref1" href="#_ftn1">[1]</a>. His parents were separated and did not enjoy a good relationship, having been involved in protracted and hostile litigation in the family courts when the Deceased was younger. At the time of his death the Deceased was experiencing mental health difficulties and was living in assisted living. He enjoyed a close relationship with his father but had had no direct contact with his mother since 2016.  The parents were agreed as to the location of the funeral and that the Deceased should be cremated but could not agree over the identity of the funeral director or what should happen to the ashes. The father wished the ashes to be scattered on Dartmoor. The mother wanted the ashes to be divided between the parents so that she could inter her half in her family’s grave. The mother’s position was set out in the judgment:  She said that she could not see why dividing the ashes would be disrespectful, she just simply could not see why, because he was equally part of both of them, and if his ashes were scattered they would be lost to the wind, that she cannot go and say goodbye to her son, so that is why she proposed that there be two ceremonies and that Theo’s ashes be divided equally between the parents so, as she describes, each got what they want.  The father considered that the division of ashes was morbid and disrespectful and it was noted that “he plainly felt very strongly about this”. The father agreed that there should be two funeral services.  Having reviewed a number of cases, Chief Master Schuman concluded that body disputes are highly fact sensitive, but that in considering the wishes of the Deceased, their family, and friends, and the location with which the Deceased was mostly connected, the overarching principle is that there should be a decent and respectful disposal of the body without undue delay.  Having heard evidence from both parents and read witness statements from other witnesses including the Deceased’s friends and wider family members, Chief Master Shuman concluded that she did not know what the Deceased’s wishes were, but that the Deceased had close connections and a feeling of peace when at Dartmoor. Chief Master Shuman therefore ordered that Letters of Administration limited to dealing with the disposal of the Deceased’s body and thereafter his ashes should be made to the father. It was further ordered that the mother should be permitted an opportunity to spend time with the Deceased before the cremation, and that some personal items belonging to the Deceased should be given to the mother. If the mother and father could not agree on the funeral, the mother was to be permitted to have her own service beforehand.  The practical effect of the order was that the ashes were not to be split, although the Master made no specific comment on this issue, or on the case of Fessi v Whitmore<a href="#_ftn2" id="_ftnref2">[2]</a>, to which the Master referred, where Judge Boggis QC rejected splitting the ashes of a 12 year old child between his parents, describing the submission as “wholly inappropriate”.  Comment  The compromise of holding two funeral services is one I see regularly in practice, along with an agreement that one party will hold a funeral before the burial/cremation and another party will hold a memorial service afterwards. But disputes over ashes can be much more difficult to resolve.  In Read, the parties aired their arguments about what should happen to the ashes before the cremation, and in granting the father the right to Letters of Administration pursuant to s.116 of the Senior Courts Act 1981/the inherent jurisdiction of the court, the court settled the issue by determining that the father was the party who could scatter the ashes. But many ashes disputes arise only after the cremation (sometimes years later) by which time of course the body has already been disposed of and there is usually one party in possession of the ashes.  Although it has been clearly established for many years that there is no right of ownership to a dead body, the position with ashes is not as clear cut, and ashes have been deemed by the court to be property which can be owned. In the Australian case of Leeburn v Derndorfer<a id="_ftnref3" href="#_ftn3">[3]</a> Byrne J, sitting in the Supreme Court of Victoria said,  “Moreover, so long as they are not dispersed or otherwise lose their physical character as ashes, they may be owned and possessed. To my mind, therefore, it is apt to characterise the legal status of the ashes as similar to that of the preserved body in Doodeward v Spence<a id="_ftnref4" href="#_ftn4">[4]</a>. In this way the application of fire to the cremated body is to be seen as the application to it of work or skill which has transformed it from flesh and blood to ashes, from corruptible material to material which is less so. The legal consequence of this accords with what I apprehend to be the community attitude and practice. Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. In this way, ownership in the ashes may pass by sale or gift or otherwise. The only qualification, which, if it exists, may require some working out, arises from the fact that the ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence.”  Byrne J then concluded that the executors held the ashes as trustees for the “purpose of disposing or dealing with them in a way that seems to them to be appropriate having regard to any direction of the deceased in the will or otherwise and having regard to the claims of the relatives or others with an interest.”  The conclusion reached by Byrne J, that the process of cremation has the result of transforming the ashes into property, was followed by DJ Marin in DP v JCP<a href="#_ftn5" id="_ftnref5">[5]</a> who held that an executor in possession of ashes holds them on trust for the purposes of the family disposing of them, and Judge Boggis QC in Fessi determined the ashes dispute on the basis that the court was being asked to resolve a dispute between two trustees.  It can therefore be seen that disputes over ashes which arise subsequent to the cremation are not going to be resolved by making a s.116 application to appoint a Personal Representative, but will be proceedings under CPR 64 for determination of an issue arising out of a trust.   Nicola Phillipson TEP  February 2025  Nicola Phillipson is a barrister at Parklane Plowden Chambers specialising in Probate, Inheritance, and Trusts, and is the author of <a href="http://www.lawbriefpublishing.com/product/controlofthebodyafterdeath/" target="_blank" rel="noreferrer noopener">A Practical Guide to the Law in Relation to Control of the Body after Death (Law Brief Publishing)</a>  <figure class="wp-block-image size-full is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2025/02/image.jpeg" alt="" class="wp-image-10766" style="width:57px;height:auto"/></figure>  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> Rule 22 of the Non-Contentious Probate Rules 1987  <a href="#_ftnref2" id="_ftn2">[2]</a> [1999] 1 FLR 767  <a href="#_ftnref3" id="_ftn3">[3]</a> [2004] WTLR 867c  <a href="#_ftnref4" id="_ftn4">[4]</a> [1908] HCA 45; (1908) 6 CLR 406 at 412, per Griffith CJ.  <a href="#_ftnref5" id="_ftn5">[5]</a> [2010] COP 11692737

Consensual Adoption – PLWG Best Practice: A Guide

And so it was, the final article in my series covering the Public Law Working Group’s recommendations for best practice for adoption. For the final part of the series, we consider Chapter 5 of the report. This section takes a look at adoptions which are processed and ordered by the consent of the biological parent/s, that is, where the parents agree to the child being placed for adoption, or being adopted by a specific individual.  Whilst adoption by consent is an issue which, on the board of adoption matters generally, takes up a small place, it is a vitally important area. The decision to relinquish a baby is a significant and life-changing choice – currently, the availability of expert and professional services to respond to these cases is limited at best.  As with previous articles in the series, this follows the general chronology and sub-headings of the report to ensure consistency and to break the report down into a bite sized and user-friendly guide as to the recommendations.   Introduction  From 1926, those who cared for a baby who was not their biological child, could acquire an adoption order resulting in those carers legally being seen as birth parents. The 1926 Act ensured that consensual adoption was clearly focused on the child’s welfare and the consent was given fully informed and without reward or payment.  The Act significantly increased the number of children who were adopted, but the societal issues surrounding women becoming pregnant before marriage continued with full force. There were no measures in place to support such women, or even the children.  A 2022 report by the Joint Parliamentary Committee on Human Rights for the years 1949-1976 resulted from the testimonies of women who had their lives damaged by the pressures to ‘give up their baby’ for adoption. As the report summarises:  “Many young women were sent away from home to conceal their pregnancy, and many spent their final weeks of pregnancy and weeks after the birth in mother and baby homes. Some of our witnesses recounted the abuse they faced whilst away from home. We were struck by descriptions of the ways in which the women were being “punished” for what was seen as a transgression. There was an overwhelming feeling amongst the mothers we heard from that their treatment during and after giving birth was deliberate punishment for their pregnancy while unmarried”  Over the years, support increased for single parents, and the pressure on mothers to ‘give up their babies’ for adoption reduced. By the 1980’s, adoptions fell by over half. As of 2015, the number of children being adopted from care hit a high of 5360 and have since reduced continually.  A significant reason for this reduction includes the Supreme Court case of Re B [2013] UKSC 33 and the clarification provided thereafter in Re B-S (Children) [2013] EWCA Civ 1146 – producing the phrase all within the adoption sphere are aware of, “nothing else will do.”  That being said, the PLWG note that:  “Although the numbers are not large, there remains a steady number of cases where birth mothers (sometimes supported by the birth father) seek to relinquish the baby for adoption at birth. A number of these cases involve families who are foreign nationals.”  The aim of the subgroup was to look at this marginal, yet societally and practically complex issue.   Legal Framework  s.19 of the Adoption and Children Act 2002 (“ACA 2002”) sets the framework for consensual adoptions:  “(1)Where an adoption agency is satisfied that each parent or guardian of a child has consented to the child— (a) being placed for adoption with prospective adopters identified in the consent, or (b) being placed for adoption with any prospective adopters who may be chosen by the agency, and has not withdrawn the consent, the agency is authorised to place the child for adoption accordingly.”  The child’s welfare remaining a considerable factor.  Despite being a consensual process, there remains a significant role for the adoption agency. When a parent approaches an adoption agency to relinquish their child, that agency must offer counselling to explore the options and to understand the process and consequences. Such referrals can come from the mother, the hospital, or a family member or community individual.  Some mothers will not engage in the process, occasionally leaving the hospital alone and avoiding further contact (it is vital to note that no judgment is, or should be, cast upon such mothers, the circumstances and thinking of such women are unlikely to ever be known by any professionals – for most, the decision is as child centred as they come).  Where counselling is engaged in, the Working Group are clear that:  “This requires both experience and expertise and time and resources from the professional providing that counselling as well as sufficient support being available to the professional to ensure the highest quality of practice in enabling these life changing decisions.”  Given the re-structuring of adoption services through Regional Adoption Agencies, uncertainty has developed around who is responsible for certain services. It may not be clear to families who to contact, especially at a time of such struggle, when timeliness is so key.  In 2021, over 200,000 pregnancies were terminated, with the rates for those under 18 dropping. Many professionals are clear that, in a significant number of cases, mothers seeking to relinquish their baby only became aware of their pregnancy late in term. As Mr Justice Holman stated in Z County Council v R [2001] 1 FLR 365:  “Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies… There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”  In Re A, B and C (Notification of Fathers and Relatives) [2020] EWCA Civ 41, the court grappled with the question of whether fathers should be notified of cases where the mother seeks to relinquish their child. The Court of Appeal set out the principles governing such decisions.  <ol class="wp-block-list"> <li>The law does provide for ‘fast-track’ adoptions where all those with parental responsibility consent. The mothers Article 8 rights can only be infringed where necessary.</li>  <li>The nature of adoption is capable of justifying the overriding of those rights, but turns on each case.</li>  <li>The decision is one which requires priority, urgency, and thoroughness.</li>  <li>The Judge must establish the facts as clearly as possible. The reasons for such relinquishments must be treated respectfully, but their account must be scrutinised given it is one sided, as such, as much information should be gathered without breaching confidentiality.</li>  <li>There must be struck a fair balance between those interests involved, with the welfare of the child being important, but not paramount.</li>  <li>There is no single test for all cases, but key themes will be relevant: <ul class="wp-block-list"> <li>Only where compelling should a father who holds parental responsibility not be notified.</li>  <li>The more established the family life (Article 8), or potential such rights, the stronger the reasons to withhold notification.</li>  <li>The substance of the relationships between interested persons must be assessed, ensuring those who are silent are given a voice. Essentially, if their voice were known, what may the person say.</li>  <li>Is there a realistic family placement. If there clearly no viable placements via the father’s family, the need to maintain confidentiality are strengthened.</li>  <li>The impact on the mother is key. Where she would be at serious risk (such as sexual assault or honour based violence) this must weigh heavily. However, short term difficulties must not prevail.</li>  <li>Cultural and religious factors must be considered, particularly where these connections may be important for the child as they grow.</li>  <li>A mother cannot be forced to provide confidential information, including the details of the father. The court must consider the likelihood of the confidential information becoming known at a later date.</li>  <li>Whether notification will delay the outcome for the child, whilst not a key factor, it is important to consider the impact such delay may have.</li>  <li>All other relevant matters, axiomatically, are relevant.</li> </ul> </li> </ol>  Despite the clear guidance from the higher courts, there remains an issue of the procedure not being complied with; in A Local Authority v C , M and The Prospective Adopters [2023] EWFC 17, by the time of final order, proceedings had lasted 20 months. Such cases are, of course, very difficult and, as noted by the Working Group:  “…there is a risk that pregnant women who face very high hurdles in placing the baby for adoption may choose not to cooperate with the local authority or worse still to give birth in secret.”  Similarly to adoption agencies, CAFCASS also play a significant role in consensual adoption. CAFCASS have issued thorough guidance on good practice in these cases, notably, this sets out the information which should be provided to birth parents in reaching a decision about the child’s future and ensuring that the decision is made such that it can be implemented lawfully with the future consequences being fully addressed.  The PLWG note that:  “Birth parents considering adoption, need to have access to independent legal advice in order to fully understand their rights and options, including the short and long-term consequences for them and their child (and indeed other children that they may have). For those unable to pay, public funding is very restricted however, costs can be covered by the Regional Adoption Agency or local authority.”   Recommendations  Given the marginal nature of consensual adoption, the recommendations of the Working Group are similarly slim, however, the issue is an exceptionally important one and it is vital that decision making is properly informed and progressed properly. As such, the PLWG recommend that:  <ol class="wp-block-list"> <li>There must be focussed training for adoption workers on relinquishment cases. Given these situations are rare, when they do arise, there is often nobody experienced able to deal with them.</li>  <li>There should be a national strategy for relinquishment cases, with agencies establishing clear plans and principles.</li>  <li>Where possible, pre-birth planning should take place, this could include the need to apply to the courts as early as possible.</li>  <li>Early Permanence Placements should be considered for babies relinquished at birth.</li>  <li>There should be regional hubs created to provide information and expertise to parents, with longer terms support being available, including, where appropriate, securing the maintenance of relationships between the child and birth parents.</li>  <li>The consent forms which are signed by parents should be reviewed to ensure they are as clear and as straightforward as possible.</li>  <li>Legal aid should be available for parents considering relinquishing their baby. This should be available both before and after birth.</li> </ol>   Consultation Replies  “The consultation responses were diverse in their focus and comprehensive in their recommendations. It is clear that a number of the issues identified in the responses were seen to be a priority.”  Challenges to the current adoption system include: modernising contact post adoption; the proper processing and availability of access to adoption records; and the pressures on adoption professionals, including financial constraints on the public sector.  With respect to adoption by consent, the responses identified a fall in referrals regarding unplanned pregnancy. This fall appears to result from a) a reduction in women coming to the UK from Europe; and b) women at university accessing effective contraception and/or abortion services.  Unplanned pregnancies are a stressful experience and can cause a significant crisis for the women and those around her, including the father. There are also practical concerns, notably income, housing, and lifestyle changes. Most importantly, of course, are the needs of the child and their experiences.  The limited number of cases is having a noticeable impact on the availability of quality services where such cases do arrive, given the ability to adoption services to develop clear expertise in this area is low. The PLWG reports that adoption judges in Birmingham responded to the consultation, noting that:  “We see relatively few applications for adoption by consent. Our experience in Birmingham is the same as elsewhere in that social work managers are under considerable pressure. In addition, social work managers are often relatively inexperienced, compared to 10 years ago […] There are a small number of cases. We agree that as a result, there are limited opportunities to build expertise.”  This reinforces the need for focussed training for social workers and CAFCASS to be able to deal with consensual adoption cases. It is important to remember that, at the centre of each case, are the individual women faced with such life-changing issues, this demands expert professionals.  The absence of localised expertise and experience is significant, this requires coordinated practice improvement across the board, to ensure that services are able to provide:  <ul class="wp-block-list"> <li>Individualised information</li>  <li>Services which enable workable solutions for the families</li>  <li>Legal support</li>  <li>Healthcare support</li>  <li>Practical support</li> </ul>  As noted by the Working Group, this is a serious challenge, but:  “…a humanistic society does have a duty to provide support in finding workable solutions for individuals faced with life changing circumstances, both mother and baby.”   Conclusion  The PLWG’s recommendations on consensual adoption highlights the need for a more structured, supportive, and informed process for birth parents who choose to relinquish their child for adoption, whatever the reasons may be. While such cases are relatively rare, they are nonetheless important and present unique challenges that demand specialist knowledge and careful handling to ensure that both the rights of the parents and the welfare of the child are properly safeguarded. The report’s proposals focus on improving the accessibility of information, enhancing professional expertise, and ensuring that decision-making is fully informed and lawfully implemented.  The overarching recommendation is the need for dedicated training for adoption professionals, given the infrequency of these cases. Without a pool of experienced practitioners, the risk of procedural missteps and inadequate support increases (a matter we see more routinely with international cases). Establishing regional hubs and national strategies would provide a more consistent and reliable framework, ensuring that those faced with the life-changing decision of relinquishment receive expert guidance, legal support, and practical assistance, or those dealing with such cases able to access specialist oversight.  The issue of parental consent in adoption is particularly sensitive, requiring careful balancing of the mother’s right to privacy with the need to ensure that all relevant parties, including the father and extended family, are considered. The case law underscores the importance of a fair and thorough assessment, ensuring that mothers who wish to maintain confidentiality are afforded appropriate protections while still prioritising the child’s long-term welfare. The provision of early permanence placements and clearer consent forms would further streamline this process, reducing delays that can be distressing for both birth parents and prospective adopters.  A central concern is the lack of accessible and independent legal advice for parents considering relinquishment. The recommendation that legal aid should be available both before and after birth is an essential and logical step towards ensuring that parents can make informed decisions without financial barriers or this additional worry. Without this safeguard, there is a risk that decisions may be made without a full understanding of the consequences, leading to potential legal challenges or later distress for birth parents and children alike.  Although consensual adoptions form a small proportion of adoption cases, their significance cannot be overstated. The decision to relinquish a child is profound, and the adoption system, especially practitioners, simply must be equipped to provide the necessary legal, emotional, and practical support to all those involved. The Working Group’s recommendations, if implemented, would create a more robust system that respects the rights of birth parents while ensuring that every adopted child has the best possible start in life.

Chair of Bar and Bar Council visit Parklane Plowden Chambers

Parklane Plowden was delighted to welcome the Chair of the Bar, Barbara Mills KC and her Bar Council colleagues to Chambers as they visited the North Eastern Circuit today.   <figure class="wp-block-image size-full is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2025/02/Bar-Council-Visit-1-Crop.jpg" alt="" class="wp-image-10753" style="width:768px;height:auto"/></figure>  The Chair of the Bar meets with our Head of Chambers, James Murphy, Senior Practice Directors Stephen Render and Paul Clarke, and pupils Avaia Williams and Lydia Reed.  <figure class="wp-block-image size-full is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2025/02/Bar-Council-Womens-Forum-crop.jpg" alt="" class="wp-image-10754" style="width:769px;height:auto"/></figure>  The Chair of the Bar meets with the Women’s Forum, including the Head of our Inquests Team, Leila Benyounes.

Harrogate & District Law Society Property Law Talk | March 18th, 2025

Join three members of Parklane Plowden Chambers as they share their knowledge on Property Law.  Harrogate & District Law Society is holding a talk at the Cedar Court Hotel, where <a href="https://parklaneplowden.co.uk/our-barristers/adam-gould/" target="_blank" rel="noreferrer noopener">Adam Gould</a> will be speaking on the Art of Litigation, <a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/" target="_blank" rel="noreferrer noopener">Sean Kelly</a> on Partnership Property, and <a href="https://www.parklaneplowden.co.uk/our-barristers/dominic-crossley/" target="_blank" rel="noreferrer noopener">Dominic Crossley</a> on Proprietary Estoppel.  Come along and expand your knowledge in a friendly and welcoming environment. Don’t miss out on this opportunity to engage with like-minded individuals and gain valuable insights.  Date: Tuesday, March 18th, 2025  Time: 3 – 5pm  Location: Cedar Court Hotel, Park Parade, Harrogate, HG1 5AH  Cost: £10.00 and £20.00 for non-members  How to book your place: Please book using the Eventbrite link below:  <a href="https://www.eventbrite.co.uk/e/harrogate-district-law-society-property-talk-tickets-1236176740909?aff=oddtdtcreator" target="_blank" rel="noreferrer noopener">Harrogate & District Law Society Property Law Talk</a>

Attorney General’s Regional Panel

Parklane Plowden are pleased to announce that three of our members have been appointed to the Attorney General’s Regional Panel.  <a href="https://www.parklaneplowden.co.uk/our-barristers/bronia-hartley/" target="_blank" rel="noreferrer noopener">Bronia Hartley</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/richard-ryan/" target="_blank" rel="noreferrer noopener">Richard Ryan</a> have been appointed as Regional B Panel counsel from the 1st of March 2025 for a period of five years.  <a href="https://www.parklaneplowden.co.uk/our-barristers/may-martin/" target="_blank" rel="noreferrer noopener">May Martin</a> has been appointed as Regional C Panel counsel from the 1st of March 2025 for a period of five years.  The government relies on the Panels for advice and representation and seeks candidates of the highest quality. Competition for places is fierce.  We’d like to congratulate Bronia, Richard and May on their appointments.   If you would like to get in touch with our clerking team, you can do so via <a href="mailto:clerks@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">clerks@parklaneplowden.co.uk</a>.

Clarifying a conclusion of unlawful killing: R (Glaister & Carr) v HM Assistant Coroner for North Wales [2025] EWHC 167 (Admin)

Benjamin David Leonard was only aged 16 when he fell to his death from the Great Orme, North Wales, while on an Explorer Scout weekend away in August 2018. The weekend away was supervised by volunteer scout leaders, including the Claimants in this judicial review claim, Mr Glaister (Explorer Scout Leader) and Ms Carr (Assistant Explorer Scout Leader).  On a walk up the Great Orme, the group became separated, with Ms Carr leading and assuming Mr Glaister would round up Benjamin and two other scouts.  Mr Glaister did not see them at any stage. Ms Carr saw Benjamin at the top on the grassy hills. She did not ask him to re-join the group. There had been no risk assessment conducted for the activity. Benjamin, in the hope of making it down the mountain more swiftly, followed animal tracks to the cliff edge and fell, suffering a brain injury.  The inquest was not straightforward; it involved two failed attempts in 2020 and 2022. When it eventually proceeded, it involved ten interested parties (including Mr Glaister and Ms Carr), 32 hearing days, live evidence from 20 witnesses and even a hearing held on a Sunday.  Finally, in August 2024, the inquest ended with the jury recording a conclusion of “unlawful killing by the Explorer Scout Leader and Assistant Explorer Scout Leader contributed to by neglect of the Scout Association”.  Mr Glaister and Ms Carr brought claims by way of judicial review against the Assistant Coroner for North Wales culminating in this decision of the High Court.  The conclusion of unlawful killing  The case focussed around three of the six elements required for gross negligence manslaughter as outlined in R v Broughton [2020] EWCA Crim 1093 at paragraph 5:  <ul class="wp-block-list"> <li>Element (iii): establishes a threshold of “serious and obvious risk of death” at the time of breach. “An obvious risk is one that is present, clear, and unambiguous. It is immediately apparent, striking and glaring rather than something that might become apparent on further investigation”.</li> </ul>  <ul class="wp-block-list"> <li>Element (iv): it must have been reasonably foreseeable at the time of the breach of the duty, that the breach gave rise to a serious and obvious risk of death.</li> </ul>  <ul class="wp-block-list"> <li>Element (v): the breach of duty caused or made significant contribution to the death of the victim.</li> </ul>  Justice Fordham also considered R v Rose [2017] EWCA Crim 1168, which establishes thata “serious and obvious risk of death” must exist, and is to be assessed with respect to knowledge, at the time of the breach of duty. Therefore, information that the Claimants would have been aware, had they performed the duty that they breached, is excluded. Taking such information into account has been described as falling into “the Rose Trap”.  The Court also referred to R v Kuddus [2019] EWCA Crim 837 which clarifies that a foreseeable chance that risk of death might arise is not sufficient to establish a “serious and obvious risk of death”.  Serious and obvious risk of death does not require “imminence”  Both Claimants submitted that the only thing that gave rise to a foreseeable serious and obvious risk of death, was the action of Benjamin going near to the steep cliffs. They argued that prior to that point, there could be nothing more than a Kuddus chance of risk. As there was no evidence that either Claimant had been aware that Benjamin was near to the cliff at a time they could have intervened, they argued that unlawful killing could not reasonably be left to the jury.  Justice Fordham did not agree that a “serious and obvious risk of death” could only arise when Benjamin was near to the cliffs. He determined that the Claimants’ analysis incorrectly introduced imminence into the threshold of “obvious and serious risk of death”. Justice Fordham did not agree that imminence was already required by case law, and nor could he see the logic of introducing it.  Obvious information avoids the Rose Trap  The Claimants also contended that the evidence could not support a finding by a properly directed jury of reasonable foreseeability of serious and obvious risk of death without falling into the Rose Trap.  In relation to Mr Glaister, the Court found that on a possible view of the facts, his conduct regarding planning and instruction as Scout Leader meant that a finding of unlawful killing could safely be left to the jury. Likewise, in relation to Ms Carr, the conclusion could safely be left to the jury based on her conduct when she saw Benjamin and the other scouts on the grassy tops prior to Benjamin’s fall.  Justice Fordham considered that it was not necessary to attribute them knowledge in respect of what would or would not have been known at the time of the breach of duty, because the dangers posed by the terrain of the Great Orme were obvious to them. Thus, the Rose Trap was avoided.  The question of anonymity on the Record of Inquest  Both Claimants sought to quash the wording of Section 4 ROI which identified them by their roles as “Explorer Scout Leader” and “Assistant Explorer Scout Leader”. They submitted that their identification was contrary to s.10(2) Criminal Justice Act 2009, which prohibits the determination of how, when and where the deceased came by their death being framed in a way that would determine, or appear to determine, any question of criminal or civil liability on the part of a named person.  Justice Fordham found against the Claimants in this respect. He considered that the Claimants’ arguments would require the Assistant Coroner, in some circumstances, to require deliberate ambiguity where the jury reaches a conclusion for unlawful killing. The Court concluded that the law does not mandate ambiguity but allows clarity.  Justice Fordham further emphasised that an inquest is not about apportioning blame, it is about full and fearless fact-finding. This means that there will be occasions that require the naming of identifiable individuals against whom a finding of unlawful killing relates, as in this case. Even when that does happen, the inquest has not determined criminal or civil liability against that person, and the public should be expected to understand that.  Conclusion  The Court’s consideration of the lawfulness of directions and summing up to the jury have not been addressed in this short summary. Suffice to say, although not perfect, Justice Fordham could not find any reasons that the Assistant Coroner’s directions or summing up to the jury were so deficient as to render the jury’s conclusions on unlawful killing unsafe.  For that reason, and the reasons outlined above, the claims for judicial review failed.  Judgment available <a href="https://www.judiciary.uk/wp-content/uploads/2025/01/Glaister-Carr-AC-2024-MAN-000186-Fordham-J-approved-judgment-for-hand-down-30.1.25-approved.pdf" target="_blank" rel="noreferrer noopener">here</a>.

Not “On a DOLS” – Court of Protection Clarifies Terminology

Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2)  Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, looks at the judgment in Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2) and discusses the consequences of complacent terminology.  The full judgment (which merits reading in its entirety) can be found <a href="https://caselaw.nationalarchives.gov.uk/ewcop/t2/2024/76?court=ewcop" target="_blank" rel="noreferrer noopener">here</a>.  In Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2), the Court of Protection considered the care arrangements for an 18-year-old woman, Emma (“EM”), addressing issues of capacity, best interests, and the implications of terminology surrounding deprivation of liberty orders. The case also explored the Local Authority's handling of proceedings and compliance with court orders, resulting in an adverse costs order against the LA.  This article focuses only on this judgment in so far as it relates to terminology, however, the judgment serves as a key reminder to Local Authorities on the issue of compliance and should be a warning to all authorities that the Court of Protection can, and will, make adverse costs orders where necessary.   Background  Emma, an 18-year-old with autism and ADHD, presented with a history of severe self-harming behaviours and mental health crises. After escalating incidents of self-harm in early 2023, she was detained under Section 2 of the Mental Health Act 1983 and later transitioned to a care placement to address her complex needs. The placement involved 24-hour supervision, significant restrictions, and interventions for her safety.  Following Emma’s transition into adult care, her capacity to make decisions regarding her residence and care came under scrutiny. Proceedings were initiated in the High Court in August 2023 to authorise care plans under the inherent jurisdiction. These proceedings transitioned to the Court of Protection after Emma turned 18. Throughout the case, Emma expressed a desire for less restrictive care arrangements, though concerns about her fluctuating capacity and safety risks persisted.  The Local Authority sought to withdraw Court of Protection proceedings and discharge orders authorising Emma’s deprivation of liberty on the basis that her placement could continue without such authorisations. The Official Solicitor, acting as Emma’s litigation friend, raised concerns about the LA's compliance with previous court orders, its understanding of care planning, and its reliance on the term “on a DOLS.”  Emma’s psychiatrist emphasised her fluctuating capacity and the need for therapeutic care planning, noting Emma’s progress and her stated preference for fewer restrictions. However, inconsistencies in the LA’s approach to care planning and communication exacerbated delays and confusion.   The Law & Judgment  A key issue to the case was Emma’s capacity, or lack of. As noted by Emma’s psychiatrist, her capacity and ability to make relevant decisions fluctuates. Whilst this point, is not the crux of this article, or the ‘interesting’ element to have come out of the case, what the Court said on the point is of interest, noting that:  “It was not clear to the Court whether in fact EM was still in a crisis during which her capacity to make relevant decisions was absent, at least some of the time. In such circumstances the Court needs to understand the nature of the fluctuating capacity, what triggers it and what is the scope of the incapacity when triggered.”  The Court pointed out that the difficulties with such cases are well illustrated in Leicestershire County Council v P & NHS Leicester, Leicestershire & Rutland ICB [2024] EWCOP 53 (T3), a judgment which had not been reported at the time of the hearing in Emma’s case.  The Court approved the plan being sought, but Judge Burrows criticised the Local Authority for its misunderstanding on the legal framework with respects to deprivation of liberty cases. It was noted that, DoL or DoLs refers to the wording of Article 5 of the ECHR, as an acronym for “Deprivation of Liberty”. DOLS on the other hand refers to Schedule A1 of the Mental Capacity Act 2005, and is in reference to the Deprivation of Liberty Safeguards.  As such, as stated by the Judge:  “Emma is therefore subject to an order that authorises her deprivation of liberty, which could be called a DoL or DoLs order. She is not on a DOLS.”  On this, the Judge further explained that being deprived of one’s liberty needs to be authorised as part of a care plan. This can be pursuant to Schedule A1 (the DOLS) where a person aged over 18 is detained, or pursuant to ss.15 and 16 of the MCA where the person is under 18 or somewhere other than a hospital or care home.  The fact that Emma’s case was dealt with by way of the inherent jurisdiction meant that her liberty was deprived outside the statutory regime, thus meaning she was subject to a DoL order (again, not DOLS). The terminology is a key point, as Judge Burrows explained, the expression to be “on a dol”:  “…whilst perfectly legitimate abbreviations, must be understood properly and within that context. To be “on” or “under a dol” means to be subject to an order (or authorisation) approving and authorising a care plan which allows the carer to use restrictions that amount to a deprivation of liberty in the best interests of P. Clearly, the emphasis here is on the care plan itself and not the legal status of the restrictions that can be used.”  As a key point, the Court pointed out that:  “Unfortunately, when the Court authorises such a care plan that amounts to a “dol” it is seen as being mandatory, like the Court has imposed a prison sentence.  …  It is important to emphasise though that the care plan is King here”  It is Emma’s care plan, not the court’s authorisation, which determines the nature of her restrictions. If those involved in her care are able to devise a care plan which does not require a deprivation of liberty, then the court will authorise it. Similarly, if the care plan requires the possibility of a deprivation, this will be authorised, but it is not prescriptive of what must happen.  This led to confusion in Emma’s case. The Local Authority were under the impression that, the only way that Emma’s care plan could evolve such that she could move into the community or not be under such restrictions would be to “have the dols lifted”. As the Court put it:  “This is incorrect. If the LA devises a care plan whereby Emma can move to another place where she will not be deprived of her liberty, there will be no need for the Court to authorise her deprivation of liberty. If a plan is devised at her present placement that does not amount to a deprivation of Emma’s liberty, the Court will not need to authorise one.”  The Judge, clearly expressing concern around such applications, pointed out that, by virtue of focusing so heavily on whether a person is subject to a DoLs order or “on a dol”, that person is lost sight off, they are simply either a person who is on a dol or not. With many people subject to a deprivation of liberty thus feeling forgotten about and put out of sight until the issue of DoLs is raised.   Commentary  Whilst not appearing to many to be an issue worth a significant part of a judgment, the terminology involved in these decisions, as with most court orders, is key. In the first instance, when terminology is the focus, those people involved in the cases are almost pushed aside and the focus is shifted solely to black letter. It becomes easy for practitioners to forget that there are real people at the heart of these cases. In the second instance, when terminology becomes the centre of focus, it is easy to stray from the actual position in law, requiring such decisions to correct the steer.  Parallels can be drawn with numerous areas of law. Rather than being Adam, he is “sectioned under the Mental Health Act.” Rather than being Jane, she is “on a Care Order.” And whilst these statuses in law are vital when it comes down to legal issues, these statuses should not cloud the fact that these people are people, with their own unique experiences and perspectives and thoughts and feelings and unique requirements when it comes down to their care and support.  The court underscored the critical role of accurate terminology and understanding in deprivation of liberty cases. The court’s dissection of the term “on a DOLS” highlights the need for precision to avoid misconceptions that could undermine the dignity and autonomy of individuals subject to restrictive care plans. The term “on a DOLS”, outside of being legally incorrect, also oversimplifies the nuanced process of authorising and implementing care plans; at their heart, these authorisations are ordering the approval to deprive somebody of their liberty where this is necessary in implementing a care plan, the court are not ordering that a certain course of action must take place. To put it simply, just because the court has authorised a person be deprived of their liberty, it does not mean that person must be deprived of their liberty.  Misconceptions about DoL orders can lead to the false perception that individuals are “locked up” by court mandate, rather than this being an option through their care plans and the decision of all those involved in their care, developed in their best interests.  This judgment, while specific to Emma’s case, offers valuable guidance for practitioners, notably those working on the front lines with individuals who are subject to DoL orders, navigating the complexities of deprivation of liberty care planning within the MCA framework.

Symptoms of perimenopause found to have contributed to the death of Danielle Moore, lead singer of Crazy P

Bronia represented the family of Danielle Moore, musician and lead singer/front-person of Crazy P, who took her own life on 30 August 2024, age 52.  The inquest heard that prior to her death, Danielle began to experience low mood and dissociation after many years of good mental health. The coroner found that the symptoms of perimenopause, coupled with exhaustion, contributed to Danielle’s death.  Following the inquest, Danielle’s family released a statement calling for more awareness around the impact of the perimenopause and menopause on women’s mental health. Low mood, anxiety, mood swings and low self-esteem are recognised as common symptoms on the NHS website, but there is an increasing body of research suggesting that perimenopausal women (especially those with a history of mental health disorders) have a significantly higher risk of being diagnosed with depression compared to premenopausal women.  Bronia was instructed by <a href="https://www.linkedin.com/in/adele-whitfield-bbb04211/?originalSubdomain=uk" target="_blank" rel="noreferrer noopener">Adele Whitfield</a> of <a href="https://www.eatonsmith.co.uk/" target="_blank" rel="noreferrer noopener">Eaton Smith LLP</a>.  Bronia is appointed as an Assistant Coroner. She regularly represents interested persons in a wide range of inquests including Article 2 jury inquests and complex medical matters, with particular expertise in mental health provision.  Press coverage:  <a href="https://www.bbc.co.uk/news/articles/cjr82r33x2eo" target="_blank" rel="noreferrer noopener">BBC</a>  <a href="https://www.nme.com/news/music/crazy-p-singer-danielle-moores-family-release-statement-after-suicide-inquest-the-image-of-human-kindness-and-generosity-of-spirit-3829695" target="_blank" rel="noreferrer noopener">NME</a>  <a href="https://www.hellomagazine.com/healthandbeauty/health-and-fitness/810336/depression-anxiety-or-perimenopause-differences/" target="_blank" rel="noreferrer noopener">Hello Magazine</a>

Settlement Success in Clinical Negligence Birth Injury

Leila Benyounes represented the Claimant who suffered a “never event” when a vaginal swab was retained following the birth of her first child. This caused multiple medical presentations, repeated infections, and the development of a severe injury.  Causation of the Claimant’s permanent symptoms resulting in an inability to return to work full-time was strongly contested by the Defendant.  Leila acted for the Claimant throughout this claim in respect of pleadings and conducting conferences with experts of different disciplines, and the case had been listed for trial of causation and quantum.  Settlement of a six-figure sum was eventually reached nine years after the negligence at a joint settlement meeting.  Leila was instructed by <a href="https://www.ramsdens.co.uk/team/rachel-sharp" target="_blank" rel="noreferrer noopener">Rachel Sharp</a> at Ramsdens Solicitors.  Leila is a specialist in the fields of Clinical Negligence and Inquests. She is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as a leading junior in Legal 500 and Chambers and Partners for Clinical Negligence and Inquests and Inquiries. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes" target="_blank" rel="noreferrer noopener">here</a>.

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